Excerpt:res judicata - civil procedure code, sections 562, 588(28)--second appeal--civil procedure code, sections 565, 566--determination of case by high court. - - 4. upon the second question referred to the full bench, as i understand the majority of the court to be in favour of giving an answer in the affirmative, and as take question is one relating to practice, i am unwilling to say anything that might seem like a reflection upon the opinion of the majority of the court;.....suit, which is still open, and must be decided in the final decree in the suit.2. upon the second question referred to the full bench, i am of opinion that our answer should be in the affirmative. in the case of bal kishen v. jasoda kuar i.l.r. 7 all. 765 i have already stated my views upon this subject, and i have nothing to add to what i then said except that i entirely adhere to it.straight, j.3. with reference to the first question referred to the full bench, i am of the same opinion. the decision of this court, which is prayed in aid and set up as matter of res judicata, as regards the plaintiff's right of preemption, is one which was passed on an appeal from an order of remand by the judge under section 562 of the civil procedure code, which was preferred to this court under.....

Judgment:

W. Comer Petheram, C.J.

1. I am of opinion that our answer to the first of the two questions which have been referred to us should be in the negative. The reason for this opinion is that the decision which is relied on and set up as concluding the matter, is a decision of a merely interlocutory character, which was passed in the same suit which is now before us. I am of opinion that the questions of fact involved in that interlocutory proceeding were decided only so far as was necessary for the purpose of passing the order; and that that decision must not be regarded as determining the main question in the suit, which is still open, and must be decided in the final decree in the suit.

2. Upon the second question referred to the Full Bench, I am of opinion that our answer should be in the affirmative. In the case of Bal Kishen v. Jasoda Kuar I.L.R. 7 All. 765 I have already stated my views upon this subject, and I have nothing to add to what I then said except that I entirely adhere to it.

Straight, J.

3. With reference to the first question referred to the Full Bench, I am of the same opinion. The decision of this Court, which is prayed in aid and set up as matter of res judicata, as regards the plaintiff's right of preemption, is one which was passed on an appeal from an order of remand by the Judge under Section 562 of the Civil Procedure Code, which was preferred to this Court under Section 588. Under the provisions of Section 562, the Judge before whom the appeal from the Munsif came, was only competent to remand the case to the Munsif, if it appeared to him that the Munsif's decree had 'disposed of the case upon a preliminary point, so as to exclude any evidence of fact' essential to the determination of the rights of the parties. The jurisdiction of the Judge to pass an order of remand under Section 562 was limited by the terms of that section; and that being so, the jurisdiction of this Court was similarly limited in dealing with an appeal from his order preferred under Section 588. Under these circumstances the remark made in the order of this Court, dealing with the plaintiff's right of pre-emption, can only be regarded as an obiter dictum, and not as determining any question as to the pre-emptive right. The part of this Court's order which was within the competence of the Court to make under Sections 562 and 588 was the latter part, in which it was held that the Judge was wrong in remanding the case under Section 562, because, as a matter of fact, the Court of First Instance had not disposed of the suit in the manner contemplated by that section.

4. Upon the second question referred to the Full Bench, as I understand the majority of the Court to be in favour of giving an answer in the affirmative, and as take question is one relating to practice, I am unwilling to say anything that might seem like a reflection upon the opinion of the majority of the Court; and I prefer to say merely that I adhere to the view which I expressed in Bal Kishen v. Jasoda Kuar I.L.R. 7 Ali. 765.

Oldfield, J

5. I concur with the learned Chief Justice in the answers which he proposes to both of the questions referred to the Full Bench.

Brodhurst, J.

6. I conour with the learned Chief Justice upon the first question. Upon the second, it is enough for me to say that I concur in the opinion expressed by my brother Straight in Bal Kishen v. Jasoda Kuar I.L.R. 7 All. 765.

Tyrrell, J.

7. I concur upon both questions in the answers proposed by the learned Chief Justice.